Calcutta High Court (Appellete Side)
Sri Amar Nath Paul & Ors vs The State Of West Bengal & Ors on 12 May, 2016
Author: Arindam Sinha
Bench: Arindam Sinha
1
WP 15618 (W) of 2010
In The High Court At Calcutta
12.05.2016 Constitutional Writ Jurisdiction
07
dd
WP 15618 (W) of 2010
Sri Amar Nath Paul & Ors.
Vs.
The State of West Bengal & Ors.
Mr. Partha Chakraborty
... ... For the petitioners
Mr. Amit Prakash Lahiri
Mr. Pinaki Dhole
Mr. Shuvro Prokesh Lahiri
... ...For the State
Mr. Partha Sarathi Bose
Mr. Satyajit Talukdar
... ...For the KKMDA
This writ petition was filed on 22nd July, 2010. It came up for final
hearing on 27th January, 2016. Mr. Chakraborty, learned advocate had
appeared on behalf of the petitioners and made his submissions. On
behalf of the State Mr. Lahiri, learned advocate had sought for and
obtained leave to file a supplementary affidavit. The submissions made on
that date as appearing in order dated 27th January, 2016 are reproduced
below :-
"Mr. Chakraborty, learned advocate appearing on behalf of
the petitioners submits the land of his clients was sought to be
initially required under the West Bengal Land (Requisition and
Acquisition) Act, 1948 and the Rules framed thereunder and
thereafter acquired. His clients have challenged the requisition
2
WP 15618 (W) of 2010
and consequently the acquisition on the ground no notice under
Section 3(2) of the said Act was served on the owners of the land
in question. Specific averments to that effect were made in
paragraphs 8 and 10 of the writ petition. In response in the
affidavit-in-opposition filed on behalf of the State, the dates of
taking possession of the several plots and issuance of general
notice for the entire mouza have been alleged. Mr. Chakraborty
relied on two judgments - one delivered by a Division Bench of
this Court and the other by the Supreme Court.
In Sailendra Nath Pal & Ors. vs. State of West Bengal &
Ors. reported in 2010(2) CHN (Cal) 315 a Division Bench of
this Court had struck down the order made under sub-section (1)
of Section 3 of the said Act on the omission of issuance and
service of notice under Section 3(2) in the prescribed manner.
Mr. Chakraborty then relied on the decision in the case of
Raghbir Singh Sehrawat vs. State of Haryana & Ors. reported
in [2012(109) AIC 200(S.C)] in which the Supreme Court in
paragraph 16 thereof held that the High Court was in error in
summarily dismissing the writ petition on the claim of
acquisition made and possession had there being no evidence
produced by the respondents to show that actual possession of
the land had been taken after giving notice at a time when at least an independent witness was present.
The notice of case requiring the respondents to produce evidence regarding them having taken possession, as alleged by the State in its affidavit, had not been given in the petition. In the circumstances, the State is given leave to file a supplementary affidavit, a copy of which must be made over to the learned advocate for the petitioners by 12th February, 2016. The supplementary affidavit must disclose evidence regarding possession taken by the State. Since it has been submitted a copy of the affidavit-in-opposition was served on the petitioners two days back, the petitioners will be entitled to use a reply both to 3 WP 15618 (W) of 2010 the affidavit-in-opposition as well as supplementary affidavit, also to be filed on the adjourned date, advance copy thereof served."
A supplementary affidavit was filed. On the basis of statements made in the supplementary affidavit submissions were made on behalf of the State as well as the petitioners. Those submissions were recorded in order dated 29th March, 2016. By that order the Court had also required the petitioner no. 1 to file an affidavit regarding submissions made in the said supplementary affidavit, since the affidavit-in-opposition filed by his brother cannot be relied upon as best evidence. The submissions, as appear in order dated 29th March, 2016, are also reproduced herein :-
"Record of submissions made by Mr. Chakraborty, learned advocate appearing on behalf of the petitioners was made in order dated 27th January, 2016. Pursuant thereto a supplementary affidavit has been filed on behalf of the State. In paragraph 4 of the said affidavit, inter alia, payment notice with due signature of Amar Nath Paul has been referred to as disclosed to be collective Annexure-'E'. The said disclosure is of two pages being pages15 and 16 of the supplementary affidavit. Page 16 bears, as submitted on behalf of the State, the signature of Amar Nath Paul though after a previous signature scored out.
Mr. Chakraborty submits the said payment notice is not an acceptance of payment. Furthermore specific averments have been made in paragraph 6 of the affidavit-in-opposition filed by the brother of Amar Nath Paul, to the supplementary affidavit, both petitioners, to the effect that the name of Amar Nath Paul has been inserted by illegal means only for the purpose of making wrongful gain. He submits further, the other facts stand admitted. No notice was issued or served upon the petitioners being the land owners in terms of Section 3(2) of the West Bengal Land 4 WP 15618 (W) of 2010 (Requisition and Acquisition) Act, 1948 in the manner provided in Rule 3 of the West Bengal Land (Requisition and Acquisition) Rules, 1948. Possession had also not been taken. The petitioners have specifically averred they are in possession and the State has not come up with any disclosure of steps taken to show that the present possession of the petitioners was subsequent to the plots having been acquired and taken possession of by the State and handed over to the requiring body.
Mr. Lahiri, learned advocate appears on behalf of the State and relies on the supplementary affidavit, in particular the said annexure being the payment notice. According to him it does not lie in the mouth of the petitioners to allege that order of requisition made under Section 3 of the said Act had not been served in the prescribed manner upon their predecessor-in- interest being the land owner.
The statements in the supplementary affidavit filed by the State regarding payment made and reliance upon disclosure of payment notice are reproduced below :-
"Again, from the award declared on 21.04.1989 in case no. LA II/2 of 1977-78 (Award Book No. 2), it transpires that the award of plots no. 3749/3701 for an area 0.826 acre (vide award sl. No. 1 of Award Book no.
2) amounts to Rs. 1,36,579.66 p. Out of Rs. 1,36,579.66p., Rs. 28,434.99p. has been paid to the awardees. The rest amount Rs. 1,08,144.67 p. has been deposited as C.D. to Special L.A. Judge Alipore vide cheque no. 794375 dated 20.04.2007. It is found that Sri Amarnath Pal has received the payment notice on behalf of his mother namely Kishori Rani Pal. The awardees include Kshori Rani Paul, petitioner in interest of the writ petitioners.
A general notice was issued by the Land Acquisition Collector under Act II of 1948 on 21.03.1997.
A copy of the same and the payment notice with due 5 WP 15618 (W) of 2010 signature of Amarnath Pal are collectively annexed herein as Annexure 'E'."
The petitioner no. 1 filed an affidavit affirmed on 4th April, 2016. The affidavit is full of arguments. In paragraph 5 the said petitioner stated, inter alia, as follows:-
"That first of all, I like to state that at the relevant point of time i.e. 1983, I was a minor aged about below 10 years and as such the question of receiving the payment notice on behalf of my deceased mother, particularly when she was alive at the relevant point of time cannot and/or does not arise or at all."
Yesterday, the writ petition was taken up for hearing once again. The respondents being the State as well as the KMDA both took the point that there was no specific denial in the affidavit filed by the petitioner no. 1 regarding whether or not the said petitioner had put his signature in obtaining the payment notice as disclosed in the supplementary affidavit. The Court was of the view that the fact regarding whether or not the petitioner no. 1 received the payment notice upon putting his signature when the said petitioner had alleged that in the year 1983 he was a minor, below 10 years of age, could be established by the petitioner taking the box and being examined. The Court's view was and still is that this was not a complex question of fact but arisen from a poorly drawn affidavit.
Mr. Lahiri relied on several decisions of the Supreme Court to urge that the writ Court can only in exceptional circumstances examine witnesses. He relied on the following cases :-
(i) Union of India vs. T.B. Varma reported in AIR 1957 SC 882 in particular paragraph 6 therein where the said Court held, inter alia, that 6 WP 15618 (W) of 2010 where alternative remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution, unless there are good grounds therefor. Also that a question on which there is a serious dispute, which cannot be satisfactorily decided without taking evidence, such would not be in the practice of Courts to decide questions of that character in a writ petition.
(ii) Himmat Singh vs. State of Haryana & Ors. reported in (2006) 9 SCC 256 in particular paragraph 18 in which the Supreme Court observed, it is well-known that in a writ petition ordinarily a disputed question of fact should not be entertained.
(iii) The case of Joshi Technologies International INC. vs. Union of India reported in [2015] 0 Supreme (SC) 433 to paragraphs 68 and 69 therein wherein the Supreme Court summarized principles regarding absolute bar to the maintainability of a writ petition, to declare that if there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination, or if the disputed facts required assessment of evidence, the correctness of which can only be decided satisfactorily by taking detailed evidence, involving examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution.
(iv) Lastly, in the case of Swati Ferro Alloys Private Limited vs. Orissa Industrial Infrastructure Development Corporation reported in 2015 (1) Supreme 253 to paragraphs 16 and 18. The Supreme Court in that case was concerned with a disputed question of fact about the 7 WP 15618 (W) of 2010 ownership of a plot in an industrial estate in Cuttack. In dealing with the appeal which contained such dispute, the Supreme Court agreed with the observation of the High Court that the matter involves disputed question of fact and was of the opinion that the respondent should inquire into the matter to find out as to whether the land is properly used by one or other party for the purpose.
Mr. Talukdar, learned advocate appearing on behalf of the KMDA relied on another decision of the Supreme Court in the case of R. Rajagopal alias R. R. Gopal & Anr. vs. State of Tamil Nadu & Ors. reported in AIR 1995 SC 264 to paragraphs 6 and 7 therein. In that case the Supreme Court found the disputed question arose in a situation where persons involved in the dispute were not made parties to the writ petition. Hence, the said Court in exercising jurisdiction under Article 32 of the Constitution found that it could not go into such a disputed question of fact.
Mr. Chakraborty, in reply, relied on yet another case of the Supreme Court being National Thermal Power Corporation vs. Mahesh Dutta & Ors. reported in (2009) 8 SCC 339 in particular paragraph 39 therein by which the said Court declared that there is no law that the High Court is denied or debarred from entering into a disputed question of fact (in exercising power under Article 226 of the Constitution). In a given case, the said Court declared, the High Court may also examine witnesses.
The dispute regarding whether or not the petitioner no. 1 put his signature and obtained the payment notice is really ancillary and not pertaining to the real challenge which is whether or not notice under 8 WP 15618 (W) of 2010 Section 3(2) of the West Bengal Land (Requisition and Acquisition) Act, 1948 and the Rules framed thereunder was issued to the petitioners being the land holders. By the belated supplementary affidavit filed, an assertion, to be a fact, was sought to be established by the State, that a payment notice, not actual payment, was accepted by the petitioner no. 1 by having put his signature in acknowledgement in the Register. The said petitioner has filed an affidavit in response therein stating, inter alia, that he was a minor then. The column in the supplementary affidavit bearing the said petitioner's signature contains scoring out of a name prior written. This Court is inclined to exercise discretion to allow the said petitioner, present in Court, to take the box, be examined in-chief and then cross-examined by the respondents, if they so desire, in view of the submission that the said affidavit bears neither a complete nor a specific denial. The petitioner no. 1 will take the box for the examination to be proceeded with and thereafter the hearing to continue and be concluded.
The witness is administered oath.
To Mr. Chakraborty in examination-in-chief.
Q. What is your name?
Ans. Amar Nath Paul.
Q. Shown page 16 of the supplementary affidavit affirmed on 7th March, 2016. Does your signature appear in this page?
Ans. The last signature is my signature.
Cross-examination declined.
Mr. Talukdar raises two points in seeking to resist the challenge in 9 WP 15618 (W) of 2010 the writ petition. His first point is that the petitioners were not entitled to be served with a notice under Section 3(2) of the said Act since their names were not recorded in the Record of Rights. He refers to paragraph 5 of the writ petition where the petitioners have averred that their names were there in the Rent Rolls. He submits, the Rent Rolls were record prior to the drawing up of the Record of Rights. The petitioners had omitted to come before the appropriate Authority to have their names recorded. In the circumstances, the issuance of general notice was substantial compliance. His second submission is that there has been delay on the part of the petitioners to have approached this Court with their challenge which is a lach on the part of the petitioners disentitling them from equitable relief. He relies on a decision of the Supreme Court in the case of State of Maharashtra vs. Digambar reported in (1995) 4 SCC 683 to paragraph 14 therein wherein the said Court observed that it is difficult to comprehend how a person who alleges against the State of deprivation of his legal right can get relief of compensation from the State by invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though he is guilty of laches or undue delay.
The objection on the ground of the petitioners not having had their names recorded in the Records of Rights is an objection taken at the bar in the final hearing of a writ petition after six years of its pendency. The petitioners have had no opportunity to deal with such an allegation. The objection has come from KMDA and not the State who has filed supplementary affidavit as recorded above, in which they have said the petitioners were notified of payment due to them as land holders, to 10 WP 15618 (W) of 2010 receive compensation. The said objection is therefore not accepted. The other objection regarding delay is also not accepted by this Court since the case of the petitioners is based on the allegation that no notice was ever issued. Whether there has been laches on the part of the petitioners to debar them from equitable relief by applying the principle of acquiesence and waiver against them as established by urging the same in an affidavit with opportunity to petitioners to explain, was not done. The petitioner no.1 having accepted a payment notice on an unspecified date is insufficient to disentitle the petitioners from relief they are entitled in law. The petitioners' allegation is no notice was issued, which allegation appears to be a fact. In Sailendra Nath Pal (supra) a Division Bench of this Court in paragraphs 37 to 41 said as reproduced below :-
"37. Therefore, even if a copy of the said order was pasted on the office board of the Collector, South 24-Parganas, same could not be said to be in compliance with Rule 3(d) of the West Bengal Land (Requisition and Acquisition) Rules, 1948 since the said Rules specifically provide that the order under section 3(1) would be served by affixing a copy thereof in some conspicuous part of the land to which the order relates, and also in some conspicuous place of the office of the Collector.
38. In the present case, by pasting a copy of the order under section 3(1) of the Act 2 of 1948 at the local Free Primary School at Kasba, which is admittedly not situated on the subject land, the respondent authorities did not comply with the statutory obligation with regard to the service of the order under section 3(1) of the said Act on the owner of the land upon complying with the requirements of Rule 3 of the West Bengal Land (Requisition and Acquisition) Rules, 1948.
39. Thus, we are convinced that in the instant case, the 11 WP 15618 (W) of 2010 provisions of section 3(2) of the West Bengal Land (Requisition and Acquisition) Act, 1948 and Rule 3 of the West Bengal Land (Requisition and Acquisition) Rules, 1948 have not been complied with.
40. In the aforesaid circumstances, the order of requisition passed in respect of the land in question cannot be held to be valid for not complying with the required provisions of Section 3(2) of the said Act of 1948 and Rule 3 of the said Rules, 1948. Therefore, all subsequent steps taken for acquisition of the land in question cannot be held also to be valid.
41. Under section 4 of the said Act there could be acquisition of a land, which has been properly requisitioned under section 3. Section 4(1)(a) empowers the State Government to acquire any land, which has been requisitioned under section 3 by publishing notice in the Official Gazette that such land was required for a public purpose referred to in section 3(1). Thus, the power to acquire the land can only be exercised provided it has, been properly requisitioned under section 3 of the said Act. If the land has not been properly requisitioned, such land cannot be acquired by the State Government under section 4 of the said Act."
The submissions of the petitioners relying upon Raghbir Singh Sherawat (supra), that the State had not taken possession, also bears substance. The supplementary affidavit does not disclose the fact regarding taking of possession in the manner declared in Raghbir Singh Sherawat (supra).
For the aforesaid reasons the writ petition succeeds. This Court finds that the provisions of Section 3(2) of the West Bengal Land (Requisition and Acquisition) Act, 1948 and Rule 3 of the West Bengal Land (Requisition and Acquisition) Rules, 1948 have not been complied with. 12
WP 15618 (W) of 2010 The order of requisition passed in respect of the land in question cannot, therefore, be held to be valid. All subsequent steps taken for acquisition of the land in question cannot also be held to be valid. The petitioners will be entitled to approach the appropriate Authority for rectification of records.
Before parting with the case it must be recorded that this Court's time has been consumed in hearing an issue not germane, regarding whether the petitioner no. 1 put his signature on the Register to obtain the payment notice. The Court expresses its displeasure at the length of Court's time consumed on this non-issue where the controversy was raised by the learned advocate for the petitioner no. 1 arguing his client did not sign and the respondents arguing he did. The petitioner no. 1, however, is saved from facing a charge of perjury by reason of the submissions made by the respondents.
The writ petition is disposed of.
Mr. Talukdar prays for stay of operation of this judgment delivered in Court. The prayer is considered and refused.
Urgent photostat certified copy of this judgment, if applied for, be given to the learned advocates for the parties on usual undertakings.
(Arindam Sinha, J.) 13 WP 15618 (W) of 2010